WISCONSIN LEGISLATIVE COUNCIL Terry C. Anderson, Director TO: REPRESENTATIVE ERIC GENRICH (?Nb FROM: Melissa Schmidt, Senior Staff Attorney RE: Procedures for Removing an Elected City Mayor From Office DATE: September 29, 201.6 This memorandum, prepared at your request, provides a brief overview of the process under state law by which the mayor of a city may be removed by the city?s common council. This memorandum is limited to general information regarding the removal procedures provided under state law and does not include information regarding city common council procedures or city ordinances that may be applicable to the process of removing a city mayor from office. Also, this memorandum does not discuss the recall process for removing a city mayor or the process by which a city mayor may resign from office. Please note that this memorandum only provides general information and does not constitute legal advice on how a city common council may remove a city mayor. Before initiating procedures to remove its mayor, a city common council is strongly encouraged to consult with its city attorney for legal advice on how to proceed. Common council members may also find additional guidance and information on the process of removing any elected or appointed official in the Hm-zdbookfor Wisconsin Municipal O??icinls, prepared by the League of Wisconsin Municipalities (2012). OVERVIEW OF THE PROCESS State law provides that any elected city official, including a city mayor, may be removed by the city?s common council for ?cause? by an affirmative vote of 3/ 4ths of all of the common council members. The term ?cause? is defined under state law as ?inefficiency, neglect of duty, official misconduct, or malfeasance in office.?r The process for removing any elected city official is set forth in s. 17.16, Stats. It is important to note that this process is the same for any elected official in Wisconsin, including both state and local officials. A person who is lawfully removed from office is ineligible to be appointed or elected to fill the vacancy caused by the removal. [35. 17.001, 17.12 (1) and and 17.1.6 (10), Stats] One East Main Street, Suite 401 PO. Box 2536 N?ladison, WI 53701?2536 (608) 266-1304 Fax: (608) 266-3830 Email: lc WRITTEN CHARGES AND NOTICE Applying the removal process to the case of an elected city mayor, the process of removing the mayor for cause may only begin upon ?written verified charges" that are brought before the city common council by a resident taxpayer of the city, followed by a ?speedy public hearing." The city common council must deliver a copy of the charges mentioned above, as well as a written notice of the time and place for the hearing, to the city official who is the subject of the charges and hearing. The method of delivery may be either in person or by mail to the official's last and usual post-office address not less than 10 days prior to the hearing. In response, the city official may file a verified answer with the city?s common council within 10 days from service of the charges. 17.16 (3), Stats] PUBLIC HEARING At the public hearing, the city official must have a full opportunity to be heard and to present a defense against the charges, personally and by counsel. The city common council must conduct the hearing and make an investigation with due dispatch'1 However, if a city?s common council has a membership of more than 20, the common council may appoint a committee of not less than five of its members to conduct the hearing, make an investigation, and report the testimony and proceedings to the full common council. An appointed committee has the same power and authority as the full common council in the conduct of the hearing and investigation of the charges made against the elected official. 17.16 (3), Stats] The statutes authorize each person on the common council, and appointed committee when applicable, to administer oaths and issue subpoenas for the attendance of witnesses and the production of evidence. Each person may also make and enforce orders and rules that are necessary to properly conduct such hearing and appoint and fix the compensation of a stenographer to take testimony. 17.16 (5), Stats] Also, no person may be excused from testifying or producing evidence on the hearing for the reason that doing so may incriminate himself or herself. However, the statutes provide that no person testifying may be prosecuted for, or on account of, testifying or producing any evidence unless the person committed perjury in giving the testimony. [s 17.16 (7) Stats] WRITTEN ORDER After the public hearing, if the common council?s decision is to remove the elected city official for cause, it must make this decision in the form of a written order. A certified copy of the order, together with a complete transcript of the testimony and proceedings of the hearing and a statement of the cause or causes for which removal is made, must be filed by the city?s common council with the City clerk?s office. 17.16 (8), Stats] 1 There is no statutory definition of the term ?due dispatch." However, ?dispatch? is defined in Black?s Law Dictionary as a prompt completion of something.? [Black?s Law Dictionary, 483 (7th Ed. 1999).] -3- EXPENSES ASSOCIATED WITH REMOVAL In general, expenses related to the process of removing any elected city official, including a city mayor, are paid by the city. However, before acting upon any charges against an elected official, the city common council, or appointed committee if applicable, may require the person bringing the charges to execute and deliver a bond in the sum of $1,000 with one or more sureties approved by the common council, for payment of costs and expenses incurred for the hearing and investigation. If. the common council, or appointed committee, finds that the complaint was willful and malicious and without probable cause, all expenses must be paid by the person who brought the charges. This may be collected in either an action against the person or on the bond furnished by the person. 17.16 (4) and (9), Stats] If you have any questions, please feel free to contact me directly at the Legislative Council staff offices. MS:jal